← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump Has a Plan for the Midterms, SCOTUS May Help
00:53:31
At what point are we no longer a democracy?
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- [00:00]
A
Over 90 of the top 100 US accounting firms trust Bill to handle bill pay processes. Why? Because our tools are built on over a trillion dollars of secure payments. We're not just moving money, we're powering financial workflows for half a million customers. That's a level of expertise you just can't fake. Ready to talk with an expert? Visit bill.comproven to get started and grab a $250 gift card as a thank you. Terms and conditions apply. See Offer page for details. This episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people. But they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference. Helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate today@plannedparenthood.org defend.
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B
This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwing.
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A
Holy crap. The US Is declining faster than those sort of canonical examples of Democratic backsliding. Mail in voting means mail in cheating. I call it mail in cheating. I used a mail in ballot.
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B
Yeah, I did.
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A
You know what? Because I'm President, President of the United States. This administration has gone out hunting for fraud with all of the tools of the federal government over the last year, and they have found virtually none. Confidence in election outcomes can be seriously undermined. We can use what's happening with these ICE helping out at the airports and they're helping the people with their bags. They're moving things along. It's a beautiful thing to see. We can use this as a test case to get to really perfect ICE's involvement in the 202026 midterm elections. Yeah, I think we should have ICE agents at the polling places. The American public are rebelling at the voting booth against Donald Trump before he has fully consolidated power. And that's why that precipitous decline is both dangerous, but it actually may be our salvation.
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B
Democracy may have fallen off the luggage rack of America's station wagon and is now just visible in the rearview mirror. Last week, the vdem or Varieties of Democracy Project declared, quote, democracy in the USA is deteriorating at unprecedented speed. Now, this is indeed not a drill. We are one month into President Trump's totally illegal war that is either wrapping up or not. US Foreign policy is now conducted by some combination of, quote, maximum lethality plus truth social posts and securities fraud with a side of taco. Domestic policy is conducted by way of a paramilitary force that at present answers to checks, notes Mark Wayne Mullen. As thousands of Americans wait in line for hours and hours to make it through airport security thanks to a government shutdown that could have ended last week but for Donald Trump's refusal to compromise with Democrats, we are offered perhaps a preview of the prospect of millions of Americans waiting in line for hours and hours to vote this coming November. November also under the watchful eye of ICE agents because this president wants and needs and demands that Democrats cannot ever, ever win an election again. In the early days of Trump 2.0, the question was often posed, is this a constitutional crisis? Today, as the Secretary of the treasury announces plans to adorn American paper currency with the signature of President Donald J. Trump, the question more often seems, how competitive is this autocracy? But while we watch democracy bounce away behind us down the constitutional highway, we are not without choices, we are not without power, we are not without agency. And to remind us of that, I'm joined this week by Ian Bassim. Ian is co founder and Executive Director of Protect Democracy. He previously served as Associate White House Counsel in the Obama White House. He's been working to fight authoritarianism and illiberalism since then. Ian, welcome back to Amicus. Thank you for taking a little bit of time to help give me the straight in my veins shot in the arm that you always bring to my slightly Eeyore self. It's good to have you back.
- [05:11]
A
Oh, I love coming back here. I feel like it's like going back into the bar at Cheers. It's like this is coming around, friends, and it feels warm and comfortable. So I'm glad to be back, Norm.
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B
So listen, Ian, since I've known you, you have actually been laser focused on Democratic backsliding. The place where I started the introduction. You take these rankings, you take these data points really seriously long before anyone else was seeing around the corner of why those rankings matter. I have to say, I think many, many of the people who are going to be painting signs and heading out to protest this weekend still sort of believe that the United States is the greatest, freest constitutional democracy in the world. And it's just like having a moment, but it's going to come raging back. I'm not sure those numbers suggest that.
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A
What I find helpful about those numbers from a historical context, from an international context, is they get us out of a mindset that I think you and I probably encounter when we talk to people, which is either the, oh, the United States is the greatest democracy in the history of the world, that response, or the other response is, you know, oh, those people in Washington, the reds and the blues. This is just them bickering again. Right? And those are two responses that suggest that some of the chaos and dysfunction that we're seeing seeing is status quo, normal. And it allows people to tune it out who are otherwise not obsessively focused on politics. And when you zoom out and you look historically and internationally at trends like the Varieties of Democracy Index and see that democracy, not just in the United States, but around the world, has been in decline for most of the 21st century. And it's happening across the world at rates that, when you compare it to other moments in history, portend and pretty dangerous weather on the horizon. I find it helpful to jar people out of the mindset of either, oh, those people in Washington are fighting again, or, oh, we have the greatest democracy in the history of humanity and focus on the fact that something we're experiencing now is generationally, almost on an epochal level, different. And that's why looking at those measures is helpful, to get us to say, okay, so what does that mean about the moment we're in?
- [07:27]
B
I may be just echoing back what you just said, but to the extent that it's helpful to me, I often think it's just good to know there's a playbook, and you've been talking about the playbook forever. But somehow knowing that, like all of these things that are shocking, right, Going after the judiciary, going after a free press, going after the academy, like, this is so very much of a piece with a playbook that we've seen in other sort of illiberal democracies, authoritarian governments, that, for me, there's also just some small, tiny comfort in knowing this is what it looks like. This is maybe startling to us, but it's hardly startling.
- [08:08]
A
Yeah, I mean, having that context is both warning and comforting in a couple ways. It seems weird to say that looking at us go off a democracy cliff is comforting, but here's what I mean by that. Let's do this for a minute. I think it is helpful to divide, looking at the trajectory and trends that we're trying to assess into three different kind of layers. So one layer is just the current Trump term and the immediate acute threat that he will turn the US into an electoral autocracy, like we've seen in countries like Hungary. So that's one layer we're gonna look at. A second layer is what are the US Domestic trend lines when it comes to democracy that extend out beyond Donald Trump? And a third layer is what is the trajectory for the globe geopolitically in the 21st century? Let's talk for a minute about the first. So you mentioned the Varieties of Democracy index. There have been three major indexes that for the last couple of decades have measured the state of democracy in the US and around the world. One, you mentioned the Varieties of Democracy index out of Sweden. Another, the Economist Intelligence Unit out of the UK And a third one, Freedom House in the United States v. Dem and Freedom House both recently put out their annual reports showing yet further declines for US Democracy. A fourth one recently entered the mix, and that's the Financial Times, which built another version of these, like, let's study the trends when it comes to democracy and measure its quality around the world. And it put out its inaugural one a couple of weeks ago. And what it showed was that the decline of US Democracy since the start of the second Trump term has been more precipitous than the decline of Hungarian democracy under Orban, the decline of the Turkish system under Erdogan, the decline of the Venezuelan system under Chavez and Maduro, and the decline even of Russia under Putin. Like, if you look at the trend line, the US One has gone off a cliff faster than those other four. And I wanna suggest that that is both bad news and good news. Okay? It's bad news because holy crap, the US Is declining faster than those sort of canonical examples of democratic backsliding. But here's actually why I think it is, in a weird way, good news. And this is why that first of the trend lines like, will Donald Trump create an electoral autocracy in the United States? I'm actually a little bit more bullish about our chance of sur before we get to the more depressing points on the other two, which is this. Donald Trump is historically unpopular. Historically unpopular. He won a razor thin election in 2024. We forget this because it was so devastating for those of us who thought it would be dangerous if he won again. But he did not win a majority of votes cast. And in the electoral college, 230,000 votes across three states would have changed the election. This was a Razor thin election that Donald Trump took and proclaim was a mandate for a radical overhauling of American government. And there's a real problem if you're gonna try to radically overhaul the American system with that slim a majority, which is that people didn't vote for it, and they are going to recoil at it, especially if you do it very quickly, very chaotically, and in ways that are incredibly disruptive. And so what's happening is he is acting as if he won a 60% majority and the people are rebelling against it. And that is actually not a good plan if you are trying to build an electoral autocracy. Because the key to building an electoral autocracy is consolidating power before you become unpopular. Because in a system like the US System, you can't just seize control of everything. You need to corrupt all of these institutions. You need to win over all of these accomplices in the other branches in our federal system, in the private sector. And the way you win over those accomplices, the way that you corrupt that system, is you show that you have such enormous power and instill a level of fear that people have to respond to, that everyone essentially hands things over to you. And that started to happen, if you remember, at the beginning of Trump term, when it felt like he was ascendant and all powerful and everyone was really afraid that he was whisking people off the street and sending them to gulags in Central America without due process and planes were taking off and not listening to courts. It felt like he had that level of power, and everyone essentially acquiesced, and you had this sort of anticipatory obedience. But once he blinked around Liberation Day, he issues all of these global tariffs, the bond markets rebel, he blinks. And in that moment of blinking, the whole system kind of said, wait a minute, maybe this guy doesn't have all of this power. And ever since then, the system has not entirely handed itself freely to him, as he has done things that have been radically unpopular. And I think he fundamentally failed at the one thing that electoral autocrats need to do to create electoral autocracies, which is consolidate before you become unpopular. And so if you look at that Financial Times graph, what Putin did, what Erdogan did, what Chavez and Maduro did, and what Orban did is at the beginning of their terms, they kind of slowly corrupted the institutions at a speed that allowed them to take control before the people realized, wait a minute, we don't want this. And by the time the people realized, wait a minute, we don't want this. It was too late. And, and Trump is so undisciplined that he failed to do that. And so now he's underwater by 20 points in every presidential approval survey. The Democrats are winning every special election by double digit margins over how they performed in 2024. Most recently, they won the Florida State Supreme Court seat in Mar a Lago. Took it away from Republican. And here's a really interesting thing about that election. It wasn't that Republican turnout was underwhelming. It was a pro Republican electorate that turned out in Palm beach, they just voted for the Democrat. These are Republicans defecting. The American public are rebelling at the voting booth against Donald Trump before he has fully consolidated power. And that's why that precipitous decline is both dangerous, but it actually may be our salvation.
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B
We're gonna get to the election in a minute because what you're saying just freights up the question of what happens in elections. But before we get there, I wanna talk about Protect Democracy for a minute. The group in 2016, it's expanded exponentially. You and your team, when you and I first sat down and talked about it, put a lot of stock in litigating in that first Trump term. I know you've also been about more than just litigating, and I want to talk about some of that for sure. But this is a show about the courts and the Supreme Court. So I want to start by asking you what's changed in that toggle between litigating, organizing, some of the other stuff that you do, if anything, from, from Trump 1.0 and 2.0 in terms of what Protect Democracy is focusing on?
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A
Well, you know, when we started Protect Democracy, we were founded by a group of lawyers coming out of the White House Counsel's office and the Department of Justice. And so I think we started with a legal heavy strategy, both because we thought for all of these norms and traditions and institutions that were in danger from the rise of autocracy in the United States around the world. If we could get a court to say, don't do that, we just thought that was pretty strong medicine. And then the other reason was were hammers. And so we saw everything as a nail. And I think that that strategy was both successful in parts and unsuccessful in parts through Donald Trump's first term. It was successful in parts in that we were able to use it in a whole bunch of ways to kind of hold the line. And the fact that we had an autocrat take power in this country in 2016 and then they were essentially turned out of power through the normal democratic process in 2020. There were a couple of hiccups along the way was a testament to the success degree of that strategy in that we were able to help contribute to all of the institutions that the founders put into the Constitution, doing what they were supposed to do and checking tyranny in this country. Then, of course, the autocrat comes back in 2024, which causes us to reflect and say, well, maybe that strategy wasn't successful enough. And I think my initial reflections when I was on the show right after the 2024 election started to focus on the fact that what we were facing fundamentally was not a legal problem, but a political problem, and that the courts were only going to get us so far, including because the Supreme Court, made up of, as you and I both know, human beings, were also prone to drifting with the political culture. And we had a Supreme Court that had six justices on it who came out of a conservative legal movement that if you tried to describe it in pre 2016 terms, would look one way. But if you tried to Describe it in 2023, 2024 terms starts to look another case in point. In the argument last week in the Mississippi ballots case, Sam Alito starts sounding like he's basically getting his news from Infowars. I mean, the justices are part of the soup of what's happening in American democracy. This was true of Neil Gorsuch in the census case all the way back in Trump's first term, where if you read Gorsuch's opinion in the CENS cases, first term, it's just a sort of spigot of conspiracy theories. Right? So the justices are part of the soup, too. And I think as we turn into Trump's second term, my concern was that we might win a bunch of cases in the lower courts, but they would essentially all get reversed for the most part, when it got up to the Supreme Court. And fundamentally, Trump was able to survive the legal assaults on him in the first term because he was playing a game of populism, and that is a game of politics and not law. And so at Protect Democracy, we at the beginning of the Trump second term basically said, look, there's gonna be cases that are gonna be important, and we're gonna file those cases, and we're doing that. We just filed a case in Maine last week about the fact that the government is building a mass surveillance apparatus and is recording people who are going out there exercising their First Amendment rights and threatening that they're being put in a database of domestic terrorists, and that's illegal. And we're gonna get the court say so. So we are still litigating where it makes sense to litigate. But I think I was a little bit bare at the beginning of Trump's second term about how far the courts could get us. And I was worried that the entire democracy movement was going to put all of its chips on the court strategy, and come the end of June, the croupier was going to sweep the table of all of the chips. And I wanted to make sure when that happened, we had a bunch of chips elsewhere on the table on strategies that had to do with building the coalitions that are necessary to survive these moments. As we know to your point, by looking at international examples, you look at Poland, you look at Brazil, they built these broad all of society coalitions that contain people who disagreed about a whole bunch of normal policy questions, but agreed about the foundations of having a free and democratic system. And I will say I'm happy that I think I was wrong. I think I was wrong in that the courts have been far more important in Trump's second term than I thought they were going to be. Even though it has actually turned out to be the case that we won a lot of cases in the lower courts that ended up getting eviscerated as they moved up into the Supreme Court. That has been true. And yet still, still, the lower court victories slowed things down in really, really meaningful ways. One case in point, when Trump and Doge first came into office and they tried to basically fire all of the civil servants in order to replace them with loyalist hacks, they used a statutory power called a reduction in force, a rif, to basically say, we're going to fire a whole bunch of civil servants all at once. And we litigated a case basically saying, yeah, that's not a lawful use of that authority. You can't fire all those civil servants. And we won initially and the district court level, and that got reversed as it went up to the Supreme Court on the shadow docket. It went back down. And by the time the case got litigated again at the district court level, the federal government reduced the degree to which it wanted to fire people. Why? Because by that point, Trump's agency heads had gone into the agencies and said, oh, actually, you know what? We kind of need some of these people. You've seen this, right? Where Doge fired a bunch of people, and then the Trump administration is scrambling to hire them back because they go, oh, actually, that person was doing something important and so. So the slowing down through the courts made a material difference in slowing down Trump's ability to dismantle the system. And so I've been happily surprised that the courts have turned out to be not just more important than I thought they would be in Trump's second term. They've turned out to be essential, even as bad as the Supreme Court has been.
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More in a moment with Ian Bassin of Protect Democracy. You know what's wild? Most people are still overpaying for car insurance just because it's a pain to switch. That's why there's Jerry. Jerry's the only app that compares rates from over 50 insurance in minutes and helps you switch fast. With no spam calls or hidden fees. Drivers who save with Jerry could save over $1,300 a year before you renew your car insurance policy, do yourself a favor, download the Jerry app or head to Jerry AI Acast.
- [21:34]
A
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- [22:04]
B
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- [23:25]
A
Ian, I'm so glad you're asking this question, because this is like, this is the black box that people always wonder, like, why those cases? Let me give you the very clear decision frame that we have. So we essentially asked four questions within the team. Question one, how important is it that we address this particular issue for our mission of preventing the United States from declining further down the road of autocracy and ultimately protecting and strengthening democracy? How important is it that we do this thing? That's question one. And to answer question one, we look at the playbook you sort of alluded to earlier, which is we know from looking around the world that these autocrats have a playbook book I've discussed on the show before, right? They do these seven things. They politicize independent institutions. They spread disinformation. They aggrandize power in the hands of the executive. They quash dissent. They scapegoat vulnerable communities. They corrupt elections. They stoke violence. Those are seven things, right? If you can stop those things, you can slow those things down. You're probably able to survive an autocratic assault. So question one is, how important is doing this to stopping one of those things? That's the first question. Second question is, is do we have a really strong theory of how we will stop that? Do we think that we have a legal argument that can prevail in the courts? Or even if it's not a court case, if we're doing something else, do we have a strategy that we think can be effective? That's question two. Question three is, is anyone else doing it? Right. And so this is a happy circumstance where when we started doing this back 10 years ago, we were really one of the first, if not the first groups to say authoritarianism is coming to the United States and we to mount a massive effort to stop him. And we debated in those early days whether to use that a word. And there were some people on our board and people within the organization who said, you know, we're going to sound alarmist if we use that a word. And what we ultimately decided was we had this incredibly privileged position coming out of the White House that was not at the fringes of American politics. And if we started using that word because we thought it was true, we could actually help move it into the center of American political debate and really identify it as the threat we were facing, which is why we chose to use, and I think the data has backed up that that was right. The American people now overwhelmingly think that is the problem that we're facing. And I think it was really important that we came out early and said, this is the danger. And when we did that, there were not a lot of other groups focused on that issue. There were a lot of other wonderful groups that focused on civil rights and civil liberties that had been doing so long before we got on the scene. And we tried to be very, very deferential to what they were doing because we were really walking in their footsteps. But when it came to some of these autocratic threats, we were one of the newer people on the scene. And so answering that third question, is anyone else doing it? Often was no, and we should do it. That has changed in a really good way. So many entities, organizations, people, have joined the fight to protect democracy and to battle authoritarianism. Now, that third question is one that we often answer, yeah, someone else is doing it. That's great that there's now so many people in this fight that we get to that third question. Oh, someone else is doing that. And then the fourth question is, do we have the capacity to take it on? Which is oftentimes the biggest gate, Right? We'll say, this is really important for our mission. Right? They have sent militarized forces into the city of Chicago. This is the canonical example of what authoritarianism looks like. Sort of jackbooted brown shirts roughing people up on the streets just for walking around and having a darker skin tone. We think we've got a good theory, but why this is unlawful and we can get the courts to say so. We don't see someone else right now bringing this case. And then the question, of course, well, can we take it on? It's a big undertaking. And because we were actually hitting the wall on that fourth question, often we've grown the team over the last 10 years, almost 10% growth year over year. We're now almost 150 people across 30 states. Because every time we get to that fourth question and say we don't have capacity, we think, okay, well, let's see if we can raise some more funds, hire some more people, and be able to take that on. So those are the four questions. Is it really important that we take this on for the mission? Do we feel like we've got a really viable theory here? Is anyone else doing it, and do we have capacity? And when we ask those four questions, we generally come up with either, yep, let's do it, or nope, let's not do it. And so that produces a really interesting docket of cases. I refer to the Chicago case. I'll just say something about it. Because it's another example of where even if the case didn't ultimately produce a Supreme Court opinion saying, oh my God, you can't do that. It was really valuable. So the first big federal surge of militarized forces, Midway blitz to Chicago. We saw horrific scenes of these federal forces that were just roughing up peaceful protesters, journalists trying to cover it with perhaps the most iconic and horrific moment was one of our clients, Pastor David Black, praying outside the Broadview facility and getting shot at with rubber bullets by ICE as he was praying. And we represented him, we represented a whole bunch of journalists in Chicago, a whole bunch of peaceful protesters saying, this is all wildly unconstitutional. And Judge Sarah Ellis in Chicago produced this incredible opinion. People who are listening may recall there were headlines at the time she ordered Greg Bevito to appear before her every day at the end of the day to report on because he and his forces, according to her findings, were just ignoring what she was saying. And it was a real moment of accountability, saying, you know what, we are the courts and you're going to appear before us every day and report on what you're doing and we are going to exercise some authority here. And it was one of those cases that ended up kind of getting parts of it reversed as it made its way up to the Court of Appeals. But ultimately it slowed things down. It created a massive public uprising against what was happening. Judge Ellis documented the lies that were coming out of dhs, Trump administration and DHS ultimately pulled out of Chicago, which ended up being kind of the end of the case for the time being. And then when they deployed in Minneapolis and we saw the horrific violence there, the murders of Renee Good and Alex Priddy, and there was a question of would the administration, and this was a question that Republican senators were asking, well, could we just have the administration investigate what was happening? You had Republican Senators John Curtis saying, no, we need an independent investigation because the administration essentially can't be trusted. Why? Because Judge Ellis had written in this 230 page opinion saying, they're lying, they're lying left and right. And that opinion really, I think, laid an important ground. It was cited in all the coverage what was happening in Minneapolis that the administration can't be taken at its word. That was another case where even if we didn't ultimately win this victory in the Supreme Court, it was really, really meaningful in terms of shaping the public, understanding what was happening and exposing the administration for the lying it was doing.
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B
You're making me think of our friend Sky Perriman, who comes on the show and keeps saying to us, we're doing these lower court cases not because we think we're gonna win at the Supreme Court every time, but we're creating a record, we're calling out lies, we're telling stories. And it all again dovetails so beautifully in with what you said at the beginning, which is this election is gonna turn on. Having people look around and say, do I like authoritarianism? Do I like lying? Do I like Greg Bevino, you know, throwing his weight around? Like that's the impact and that's what you're describing.
- [30:36]
A
Spoiler alert.
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B
They don clearly. I do think we have to talk about the upcoming election, Ian, because as you noted, we had a big case at the Supreme Court this week about mail in ballots. I want to talk about it in a second. I also really am going to flag Protect Democracy just released a comprehensive report on threats to the 2026 elections. It's called Executive Override. We're going to link to it in the show notes. But I just want to ask a little precatory question before we get to the elections. And that is is an awful lot of folks have said that this flooding of ice forces into airports to sort of stand around and look scary and create five hour lines and generally just be menacing is a little bit of a preview of what it's going to be like, folks.
- [31:25]
A
Meaning Steve Bannon who said that. Right, Steve Bannon who said this is the dry run for the elections.
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B
Yeah, that's what he said. And I'm asking you the same question. Is this an attempt to get people to normalize? We're just going to have these guys standing around our polling places in November and kind of get used to it. Is that the play here?
- [31:45]
A
So yes, I think it is. But you know, again, as with all things, it cuts two ways. It's not a good thing. And we're going to fight it tooth and nail. And there is an attempt to normalize it to say we're going to be able to do this. But you know, normalizing it also normalizes. It recalibrates people's risk tolerance and might actually have the effect of dulling people's reaction to it come the election. Be oh yeah, I've gone to the airports, I've walked through this and so I'm going to go vote. Right. But let's zoom out a little bit because you're right that we have to anticipate the fact that a wildly unpopular autocrat has only one way to hold onto power in a system that still has elections, which is to undermine the fairness and the freedom of those elections. And so here's the bad news and then also the good news, right? The bad news is we know that Trump is going to try to undermine the fairness of these elections. Cuz he's already doing it. I mean, this is not speculation. This is the thing that I find wild about the people who are still wondering what's going to happen. Happen is like the guy lost an election one time so far and refused to leave without inciting a violent insurrection on the Capitol. So if you want to know how people are gonna react in an election that they're not favored to do well in, just look at how they've reacted in the past, right? So we know that he's not gonna just allow and encourage the United States to have a free and fair election. So what is he gonna do? And it's important for us to be aware, and this is what the report that you referenced explains is let's understand what's coming and what's already begun. And it's essentially three things. Deceive, disrupt, and deny. Letter of the day is here. D is the letter of the day deceived. That's a Sesame street reference for those who haven't been watching it recently. Deceive, disrupt, deny. So what is that? In 2020, the President, President Trump, after he lost the election, tried to deceive the American people into saying it was stolen. Right? The night of the election, he comes out, they stole the election. They're stealing it in Philadelphia and Milwaukee and Detroit. Subtext there, Right? And when he did that, that snap polls taken at the time showed that he convinced about 28 to 32% of the public that the election was stolen. That's an alarmingly high number. But it actually wasn't enough. Why wasn't it enough? Because in our system, as we've talked about, we don't have a national election authority that an autocrat can simply seize control over. We have this incredibly decentralized system where it's not one election, there's thousands of local elections. So if you want to steal an election in the United States, a national election, you need accomplices all over the system. You need local county clerks, you need secretaries of state, you need courts, you need legislative leaders in state houses. And when Trump turned to all those people to be his accomplices and steal the 2020 election, having convinced less than a third of the American people, it was stolen, all those people said, yeah, nah. Right? Brad Raffensperger. Yeah, nah. The Republican leaders of the state legislatures in Wisconsin and Michigan. Pennsylvania. Yeah. Nah, the. The courts en masse. Yeah. Now only 147 Republicans in Congress said, sure, yeah, we'll do that. But it still wasn't enough. So he learned that he needed to deceive more of the country and spent the next couple of years building up this big lie and trying to convince people that our elections were rigged and stolen so that the next time he would have more buy in from his accomplices. And he was actually having success doing that. Between when he left and 2021 and 2024, the number of people percentage that he'd convinced that elections were rigged and stolen had started to go up. But then he wins in 2024 and he erases all his gains because Republicans who had been persuaded by him, stop this deal. Go. Oh, actually, the elections are fine. So it goes back down to where the number is. According to polling, about a quarter of Americans think there's something fundamentally corrupt about our elections. And about three quarters think elections, by and large, produce the will of the voters. And that's where he starts his second term term. And his goal has been to change that, to get more than the people he convinced in 2020 to believe elections are stolen. And he's going to do that through. He's seizing ballots all over the country. In Fulton county and in Arizona, they're going to come out and say, the Sixth Sense. We see dead people. We found dead people on the rolls. They're going to get Nicolas Maduro to cop some plea that Venezuela hacked. They're going to create all these sort of fictional conspiracy theories. They sent voting monitors from DOJ to New Jersey and California. In 2025, Harmeet Dhillon's gonna come out some report, she sees dead people. They're gonna come out with all this manufactured stuff to try to persuade people that something untoward is happening, that Iran is interfering, China's interfering, the Cookie Monster is stealing ballots. Right. And that's all to set up the disrupt, which is once you can convince people there's something really that needs fixing here, you can get all these people you don't necessarily directly control to try to change the world rules and disrupt the system. So right now, President is putting all this heat on the Senate to pass the SAVE act, which would mandate birth certificates and passports in order to register to vote, disenfranchising tens of millions of people, including especially, I should note, married women who changed their names and may not have gone back and gotten a new birth certificate with a new name on it. But the President hasn't deceived enough people yet. And so the Senate is basically saying, nah, right. So the President's got to deceive more people. If he does, you'll have more disruption. And then ultimately, if the disruption doesn't succeed and the results are not to the President's liking, you'll have the deny phase where they will simply try to deny the results. This is what happened in 2020 in the presidential. It is what happened. And this is, I think, a really important case study. In 2024 in the North Carolina State Supreme Court race between Alison Riggs and Jefferson Griffin. For those who may not recall, the sitting North Carolina State Supreme Court Justice Alison Riggs won her reelection by about 725 votes. The loser of that race, Jefferson Griffin, said, yeah, the rules that were in place at the time, they shouldn't have been the rules. We should go back and change the rules. If you go back and change the rules, I would have won. And I will tell you, I coach like six little League teams of five and nine year olds in three different sports. I've been doing it for years. Not once has a six year old said at the end of the game, I think the rules should have been different. And if we go back and change rules, we would have won because even 6 year olds know you can't do that. But apparently Jefferson Griffin didn't understand that and tried to deny the results. And a whole coalition we were a part of it helped defeat that bid, that deny bid. So that's what we're going to see. Deceive, disrupt, deny. That is the playbook. We have a whole report discussing how it's going to play out. It's already happening. And I'll just end that on this note, which is we've seen this before. We saw it in 2020. We saw it in North Carolina in 2024. We have defeated it each time. That's the fourth D we are going to defeat this. We've done it before. We will definitely do it again.
- [38:27]
B
First of all, I'm just loving the Sesame Street Cookie Monster letter of the day energy that you are bringing to bear.
- [38:34]
A
Well, you and I talk about Muppets.
- [38:38]
B
It's my one set point where I can breathe. Let's pause to hear from some of our sponsors.
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A
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B
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A
Do you think it's legitimate for us to take into account Congress, desire Congress's passage of the election day statutes for the purpose of combating fraud or the appearance of fraud and will and some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election on the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election or yeah.
- [41:02]
B
And the question I want to ask you, and it goes back to what you said about how much we can rely on this Supreme Court court, because this is the same Supreme Court that batted away every effort in 2020 to steal the election, was not interested. I wonder how you look at the equities. On the one hand, they're the same people. They were not in any way taken by all of the stop the steal nonsense. But this is also the court that conferred immunity. As you said earlier, this is a court that on balance has given Trump win after win after. So I find myself just wondering, given this court and as you say, it's been marinating in some of this weird brine of, you know, what they want to believe of Donald Trump, do you think this is a court that is emboldened to help Donald Trump when the rubber hits the road and they have to decide or remorseful that they let it get this far or you don't play those games?
- [42:02]
A
I love that you just said it's a court that's been sort of marinating in the brine because it just made me think, yes, and they've gotten pickled. They've gotten pickled by this moment. It's such a great image. Sort of true for a lot of them and true for the problem we have of life tenure on the courts, which is they do get pickled up there in all sorts of ways. But look, I think that I have always been a legal realist. I understand that there is a helpful fiction, and I do think it is helpful that we teach in law school that in our legal profession we subscribe to, which is that courts are apolitical bodies. They simply interpret the law, and they have all of these structures and theories about how they do textual interpretation and constitutional interpretation, as Justice Roberts said. And they're the umpires. They look at the. And I think it has actually been helpful to have that fiction for most of American history. I think it has been helpful to kind of creating an understanding and a notion that courts are this sort of different sort of body than legislatures and executives, and that we should have respect for this institution to ultimately say what the law is. There's an old saying that court is not final because it's right. It's right because it's final. And that those fictions are important to sort of maintaining a system of liberal democracy in a chaotic world. And they're fictions. And I think one interesting thing about this moment is, you know, Trump is basically called the fiction in all sorts of ways about our system. And so it is really revealed that these courts and our system, this is not not law. This is just politics by other means. And these people are not brilliant legal minds who are able to sort of discern the meaning of statutes and constitutions by applying all these highfalutin theories. They are human beings, and they live in the same. Well, they don't quite live in the same world we live in. Justice Thomas apparently lives in a very, very nice world, but they live. No, they do. They live in many ways in some of. Not entirely the same, some of the same information environments we live in. And they're pro to the cultural wins. And so the justices in 2016 were living in a world in which Donald Trump was an anomaly was a weird outrage, even in traditionally conservative Circles, where the pre2016 Federalist Society canon was ascendant. And that was the world in which they lived in. And in that world, Donald Trump was abhorrent, and the things he was pushing were not necessarily conservative in any way that was understood among their social circles or their intellectual circles as being desirable. And so they were highly skeptical of it. And that lasted, I think, through the 2020 election. But over time, between 2016 and present, the world we're in has changed. And in particular, the world in the American right has changed. And I don't just mean that in the pages of the National Review, although that's certainly true in the pages of the National Review. I also mean it's true in kind of the personal circles. In these people operate, right? Brett Kavanaugh goes to dinner with people. He has friends, Amazingly, yes, he does. And those people listen to the soup. And the soup has changed. And the American right has really. It has become much more populist, has become much more authoritarian, has become much more bought in to Trumpism. Those who are still there. And if that's your world as a human being, that's your social milieu, those are your friends. Those are the intellectual people with whom you sort of go back and forth. People are tribal. They wanna stay in the good graces of the people in their social community. And you're gonna shift your views, too. And I think that that fundamentally has happened to pretty much all the justices on the court, on the right, to varying degrees. I mean, Sam Alito's been pretty far out there for a long time. I mean, my co founder, Protect Democracy, Justin Florets, and I launched a student effort to block and oppose the Confirmatius Amelito. Boy, if I think back on things, I was right on. We were right on that, boy. But they're human beings who live in the world and they' and I think the conservative group of justices has moved from a pre2016 conservatism to a 2025, 2026. Oh, my God, 2026 conservatism that is much more Trumpian, much more populist, much more illiberal, it's much more autocratic. They haven't gone all the way there. They're not Steve Bannon yet, but they've moved materially.
- [46:40]
B
That's gonna put an enormous amount of weight on this question that I want to return to, which is that means it cannot be a close. A close election. It gets a lot harder. And I want you to kind of go back to your executive override report, which, as you noted, it, it, it focuses a lot on a very simple playbook and the threats to the election. But it ends on this note that I think is really important for listeners to hear, which is, what should we be doing to make sure that this election, election isn't a squeaker? And what should we be doing not starting the first week of November 2026, but starting like, let's say today.
- [47:27]
A
Well, you know, and the report's got good advice for sort of every different kind of sector of society. Right. So on the deceive front, we need everyone with a platform and voice to call out these lies. Right. Our elections fundamentally have been remarkably resilient over a long period of time. They've never been perfect. We have had all sorts of horrib, corrupt problems in this country, voter suppression, Jim Crow. We've lived through electoral autocracy in the United States and the American south for much of our history. And yet in recent years, elections have been remarkably resilient. And every really independent, honest assessment of whether there are wild amounts of people voting illegally in this country has found that's not true. I mean, look at Utah, conservative state of Utah just looked at whether non citizens were voting in their election, found I think single digits. It might have been. Montana recently had a report. I think it found 23 people who. 23. Now, Montana is a small state, but it's not that small. Right? 23. These elections are not being changed by people unlawfully voting. And by the way, when you'd find those eight people in Utah or 23 people in Montana, it turns out oftentimes it was like, oh, it was like the chief of staff to the president. It was Mark Meadows who was like, so you need to talk about that. You got to get that out there. Two for those people who are going to come under pressure to disrupt the election, which are going to be the accomplices out there, oftentimes they're going to be Republican electeds in states, secretaries of state, legislative leaders, county clerks. What we've found over the last couple of years is that there's just strength in bringing people together, collectivity, that the more people feel like they are not alone, the easier it is to stand up to this pressure. And so for communities around the country, get the backs of your local clerks. They're doing incredible work. They're being incredibly brave now. They're facing a lot of threats. Show them support. Show them they're not alone. Go volunteer to work with them or just send them a letter or a note saying thank you. That actually makes a huge difference in people's willingness to stand up and do the right thing because they feel like the people have got their backs. But yes, powerthepoles.org work. You can volunteer to be a poll worker. What a wonderful way to serve your country in this moment of crisis, to go and help people vote. And then when it comes to the deny phase, this is where at the end of the day, if there is, to your point, Dalia, a close election. If the election is a blowout, the president may still try to deny the results. He won't succeed. If the election is close, then the president will try to deny the results, and then it's a little bit dicier. And in that moment, yes, there will be legal cases, but now here's a place where the courts will. This won't save us. This will come down to where all the political power and leverage is when the Congress is seated on January 3, 2027. And the historical analogy I think of for that moment is the Hayes Tilden election of the late 19th century. This was a presidential election which three Southern states living under Reconstruction, Union army down there trying to enforce reconstruction, make it unclear who the Electoral College ballots for those dates has been cast in favor of. The Republican, Rutherford Hill Hayes, the Democrat, Sam Tilden. And there's a real question as to who's won the election. And it ultimately is a brokered solution based on where the leverage lies. And it's a very tragic outcome. As you know, where the deal is, the Republicans get their president from the North, Rutherford Hayes, in exchange for withdrawing the Union troops, ending Reconstruction, and subjecting the south to Jim Crow for the next half century. And that was a brokered solution based on who held political leverage at the time. And so if we end up in a situation where it's a close election, the president tries to deny it, there's a fight over what should happen. It's gonna be who holds the leverage. And here, I think our North Star, our touchstone, our model is what the people of Minnesota recently did, because the people of Minnesota basically came out in a moment in which the President was trying to assert authoritarian control and said, no, we will not accept this. We will not allow this to happen. It started with the bravery of people like Alex Priddy and Renee Goode, who modeled what it looks like to stare down from fear in the face and to not be afraid, and made the incredible sacrifice for this country to show other people that if they could do it, other people could come out and get their backs. And the people of Minnesota did that. So amazingly, 70,000 people coming out in negative 14 degree weather, hundreds and thousands of families taking their kids out of school, businesses closing down. The entire state shut down and said, we will not allow this to proceed. And they forced the President to withdraw and. And to retreat. And that is the model we need to follow. And so this is the last piece that I think we should leave everybody with which is the greatest protection of the elections. Number one, participate. Overwhelming participation. And number two, people need to be organizing now to be able to insist that the actual, truthful, lawful, real results are honored. People need to come out and begin modeling now what it looks like to show up for our democracy. And Dahlia, as we sit here, People are going out today across the country in the millions for the no kings marches. If you're not out there, get out there. If you're out there, thank you for being out there. This is the practice run because if it comes down to an autocrat trying to overturn the election, it is ultimately going to be the final backstop. The first three words of the Constitution, we, the people who say no, just like the people of Minnesota did not on our watch. And if that political leverage is there, then the Congress will have no choice but to sit. The actual, lawful and rightful winners. You know, I think it's kind of fitting and poetic that for all the protections in the Constitution, for all the checks and balances and all the division of powers in federalist system, and it is indeed quite brilliant, and it really has worked to this point as a check against tyranny, which was fundamentally what the founders were trying to do. At the end of all of that, the final backstop protecting democracy is exactly where they started. It's we the people. It is ultimately up to us. And we have been able to do it for 250 years. We've overcome so many imperfections, challenges, tragedies, corruptions to get here. And I think as we approach the 250th, I'm actually to get back to the beginning. I am quite hopeful that we will see to the next 250 that we are being tested. We will come through this challenge. We will be stronger for it. Every crisis is an opportunity. On the other side of this, as we've talked about before, I think is actually something even better. We've had, you know, political historians talk about having had three foundings in this country, right, that we had our first founding, that the revolution produced the Union and the Constitution. We had our second founding after the Civil War, the three Reconstruction amendments to the Constitution. We really had our third founding after the Great Depression, two world wars. We had the New Deal, we had the civil rights movement. But each of those foundings came through a crucible of crisis and conflict before them. And I think this is following that pattern. We're going through an incredible crisis now. And on the other side is a fourth founding, where we build a democracy that is more inclusive, it is more resilient, it is more equitable, it is more perfect for the next 250 years. We're being tested. But I fundamentally believe that we will pass this test. And so to those who are out there on the streets today, you're modeling that. Thank you and look forward to seeing Everybody celebrating the 250th and delivering this country into the next great era of our democracy.
- [54:55]
B
Ian, I'm so moved by the fact that we have in this conversation started at watching what happens in the courts and ending where Tim Snyder always ends, which is corporeal bodies on the streets. This is in your hands. Write letters to your elected officials. The sort of physicality of owning this in our bodies. It is a perfect, perfect place to launch people into no kings and nobody better than you. Ian Bassin is co founder and Executive Director of Protect Democracy. Before that, he served as Associate White House Counsel in the Obama White House, and Ian has been working to fight authoritarianism and illiberal liberalism since long before even that. Ian, thank you so so much for your time here today. We really appreciate you.
- [55:41]
A
Thank you Dalia. Always good to be here.
- [55:47]
B
That's all for this episode, but Amicus plus members, I cannot wait to see you in the bonus room where Mark Joseph Stern will join me to unpack all the legal news we couldn't cram into the main show. On today's Amicus plus bonus episode, we will be trying to read some very conflicting tea leaves on which way the Supreme Court's decision in that giant mail in ballots case is likely to go and the latest, dare I say jaw dropping est of jaw drops to date from this pants on fire justice department that unfolded in court this past week. Visit slate.comamicus+ to join the joyful ranks of plesketeers by joining. You support our work and you get loads of extras and ad free listening and paywall free reading@slate.com youm can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now and we'll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslade.com we love your letters. We really appreciate them. You can find us@facebook.com amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts Sarah Burningham is Amicus's supervising producer. Our producer is Sophie Summer Hilary Fry is Slate's editor in chief Susan Matthews is executive editor Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [57:37]
A
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